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Vol. 73, No. 7, July 2000 |
Supreme Court Orders
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II.
A Rule Should Be Created That States Who Can Initiate
A Grievance And What Options Are Available To Staff At The Intake
Stage.
It is suggested that a rule be created that is similar to
the following:
Request for Investigation
(a) Commencement. Proceedings as provided in these
Rules shall be commenced:
(1) Upon request for investigation made by any person and
directed to the Director; or
(2) Upon a report made by a judge of any court of record of
this state and directed to the Director, as provided in
SCR 60.04(3)(b);
or
(3) By the Director based on an articulated cause for concern
about the lawyer's conduct.
(b) Screening. Immediately upon receipt of a request
for investigation or a report made by a judge, as provided in
subsection (a) of this Rule, the matter shall be referred to
the Director to determine:
(1) If the attorney in question is subject to the disciplinary
jurisdiction of the Supreme Court;
(2) If there is an allegation made against the attorney in
question which, if proved, would constitute misconduct; and
(3) If the matter should be investigated as provided by SCR
____ or addressed by means of diversion from discipline as provided
by SCR _____.
The Director's decision as to whether a matter should
be referred to the investigative unit for further investigation
or addressed by means of diversion from discipline shall be final,
and the grievant shall have no right of review.
Commentary: This rule is modeled after Colorado's
Rule 251.9. This rule states how requests for investigation may
be made, the options available during the intake/screening process
and makes clear that the Director's decision to investigate
or divert the grievance is not subject to a request for review
by the grievant.
III. A Rule Should Be Adopted Clarifying When A Grievant
Can Request Review Of The Director's Determination.
Determination by the Director
At the intake stage, during the investigation, or at the conclusion
thereof, the Director may determine that the matter should be
referred to the diversion from discipline program as provided
in SCR ______.
At the conclusion of the investigation of a matter that has
not been diverted, the Director shall either dismiss the allegations
or report the matter to the Probable Cause Body as provided in
SCR _______. If the Director dismisses the allegations as provided
herein, the person making the allegations against the attorney
in question may request review of the Director's decision.
If review is requested, the Probable Cause Body, or a subcommittee
of said Body, shall review the matter and make a determination
as provided in SCR _____; provided, however, that the Body shall
sustain the dismissal unless it determines that the Director's
determination constituted an abuse of discretion. The Body or
subcommittee shall furnish the grievant and the lawyer with a
written statement of its determination.
Commentary: This section further clarifies when a determination
of the Director can be reviewed. As proposed above, a grievant
shall have no right of review of the Director's decision
not to investigate an inquiry. This proposed section makes it
clear that review can be had only after the Director has decided
to investigate a matter and, after the investigation, has determined
to dismiss the grievance. In addition, this section establishes
the standard against which a decision by the Director should
be reviewed.
IV. Amend The Supreme Court Rules To Provide For Diversion
From Discipline. Such A Program Should Read As Follows:
DIVERSION FROM DISCIPLINE
(a) Referral to Program. The Director may offer an
attorney entry into the diversion from discipline program. The
diversion from discipline program may include, but is not limited
to, diversion to other programs such as mediation, fee arbitration,
law office management assistance, evaluation and treatment through
the lawyer assistance program, evaluation and treatment for alcohol
and/or substance abuse, psychological evaluation and treatment,
medical evaluation and treatment, monitoring of the attorney's
practice or trust account procedures, continuing legal education,
ethics school, the multistate professional responsibility examination,
or any other program authorized by the Court.
(b) Participation in the Program. An attorney may participate
in an approved diversion program in cases where there is little
likelihood that the attorney will harm the public during the
period of participation, where the Director can adequately supervise
the conditions of diversion, and where participation in the program
is likely to benefit the attorney and accomplish the goals of
the program. A matter generally will not be diverted under this
Rule when:
(1) The presumptive form of discipline in the matter is likely
to be greater than a private reprimand;
(2) The misconduct involves misappropriation of funds or property
of a client or a third party;
(3) The misconduct involves a serious crime as defined by
SCR 20.20(2);
(4) The misconduct involves family violence;
(5) The misconduct resulted in or is likely to result in actual
injury (loss of money, legal rights, or valuable property rights)
to a client or other person, unless restitution is made a condition
of diversion;
(6) The attorney has been publicly disciplined within the
preceding three years;
(7) The matter is of the same nature as misconduct for which
the attorney has been disciplined within the preceding five years;
(8) The misconduct involves dishonesty, fraud, deceit, or
misrepresentation; or
(9) The misconduct involves prohibited sexual relations under
these Rules;
(10) The alleged misconduct is the same as that for which
the attorney has previously been the subject of a diversion;
or
(11) The misconduct is part of a pattern of similar misconduct.
(c) Diversion Agreement. If an attorney agrees to an
offer of diversion as provided by this rule, the terms of the
diversion shall be set forth in a written agreement. The agreement
shall specify the program(s) to which the attorney shall be diverted,
the general purpose of the diversion, the manner in which compliance
is to be monitored, and any requirement for payment of restitution
or costs. (1) If the diversion agreement is entered into prior
to a report to the Probable Cause Body, pursuant to SCR ______,
the agreement shall be between the attorney and the Director.
(2) If a diversion agreement is offered and entered into after
a report to the Probable Cause Body, pursuant to SCR ______,
the diversion agreement between the attorney and the Director
shall be submitted to the Probable Cause Body for approval. If
the Probable Cause Body rejects the diversion agreement, the
matter shall proceed as otherwise provided by these Rules. (3)
If a diversion agreement is offered and entered into after a
Complaint has been filed pursuant to SCR ______, the diversion
agreement shall be submitted to the Referee for approval. If
the diversion agreement is rejected, the matter shall proceed
as provided by these Rules.
(d) Costs of the Diversion. The attorney shall pay
all the costs incurred in connection with participation in any
diversion program.
(e) Effect of Diversion. When the diversion agreement
becomes final, the attorney shall enter into the diversion program(s)
and complete the requirements thereof. Upon the attorney's
entry into the diversion program(s), the underlying matter shall
be held in abeyance, indicating diversion. Diversion shall not
constitute a form of discipline.
(f) Effect of Successful Completion of the Diversion Program.
If a diversion agreement is entered prior to a report to the
Probable Cause Body, pursuant to SCR ______, and if the Director
determines that the attorney has successfully completed all requirements
of the diversion program, the Director shall close the file.
If diversion is successfully completed in a matter that was determined
to warrant investigation or other proceedings pursuant to these
Rules, the matter shall be dismissed and expunged pursuant to
SCR ______. After the file is expunged, the attorney may respond
to any general inquiry as provided in SCR ______.
(g) Breach of Diversion Agreement. The determination
of a breach of a diversion agreement will be as follows:
(1) If the Director has reason to believe that the attorney
has breached a diversion agreement, and the diversion agreement
was entered into prior to a report to the Probable Cause Body,
pursuant to SCR _____, and after the attorney has had an opportunity
to respond, the Director may elect to modify the diversion agreement
or terminate the diversion agreement and proceed with the matter
as provided by these Rules.
(2) If the Director has reason to believe that the attorney
has breached a diversion agreement entered into after a report
to the Probable Cause Body has been made, the Director shall
give written notice of the facts establishing the breach to the
attorney and to the Probable Cause Body or Referee, whichever
approved the diversion agreement. The attorney shall have 20
days to respond in writing. The Director will have the burden,
by a preponderance of the evidence, to establish the materiality
of the breach, and the attorney will have the burden, by a preponderance
of the evidence, to establish justification for the breach. If,
after consideration of the information presented by the Director
and the attorney's response, if any, it is determined that
the breach was material and without justification, the agreement
will be terminated and the matter will proceed as provided for
by these rules. If a breach is established but determined to
be not material or to be with justification, the diversion agreement
may be modified in light of the breach. If no breach is found,
the matter shall proceed pursuant to the terms of the original
diversion agreement.
(3) If the alleged breach has been referred for determination
to the Probable Cause Body or the Referee as provided for in
section (g)(2) of this rule, upon motion of either party, a Referee
shall hold a hearing on the matter. Upon conclusion of the hearing,
the Referee shall prepare written findings of fact and conclusions
and enter an appropriate order in those matters in which the
Referee originally approved the diversion agreement.
(h) Effect of Rejection of Recommendation for Diversion.
If an attorney rejects a diversion recommendation, the matter
shall proceed as otherwise provided in these Rules.
(i) Confidentiality. The Office of Lawyer Regulation
shall keep all the files and records resulting from the diversion
of a matter confidential except by order of the Supreme Court.
Information regarding misconduct which is disclosed by the attorney
to a treatment provider while in a diversion program need not
be disclosed to the Office of Lawyer Regulation, if the misconduct
occurred before the attorney's entry into a diversion program.
Commentary: We propose that the Director be permitted
to enter into a confidential diversion from discipline agreement
at any stage of the disciplinary process so long as the conduct
of the attorney constitutes "lesser misconduct."3 See Model Rule 9.B. However, this comment focuses
on suggested diversion agreements that could be executed at the
intake stage.
Educational and remedial purposes. The kinds of conduct
we envision will result in diversion agreements at the intake
stage will usually be of the sort that would result in advice
as to conduct or a dismissal with a caution in our present system.
In keeping with the expected expedited pace of the intake process,
the agreement need not be predicated on clear and convincing
evidence of misconduct. The intake diversion typically recites
that "the purpose of this diversion agreement is to educate
the attorney and to assure that this type of conduct does not
occur in the future." Further, the agreement will state
the facts giving rise to the need for the education of the attorney
and set forth the terms on which the Director agrees to divert
the matter from additional investigation.
Ethics School. Almost without exception, we propose
that our intake diversions require the attorney to attend a day-long
Ethics School which will be taught by staff from the office of
the Director. The school will be offered at least quarterly and
most likely alternate between Madison and Milwaukee. There will
be a tuition fee and the participants will be required to pass
an examination at the end of the day. Participants will not receive
CLE credit for successful completion of the Ethics School.
Other remedial conditions. Beyond the Ethics School
requirement, the terms of any given diversion agreement will
be designed to meet the particular problems of the attorney.
A lawyer who has a problem with his/her temper and has exhibited
aggressive behavior may be required to undergo an assessment
by a counselor and be required to attend a course on anger management.
A lawyer convicted of a second operating a vehicle while intoxicated
might be required to undergo an assessment and consent to conditions
that will monitor his/her use of alcohol and other drugs. A lawyer
who has failed to keep a client informed about the status of
a case may be required to write a status letter within a certain
time period. A lawyer who has missed a deadline or a hearing
due to poor calendaring practices might be required to pay for
an audit of his or her law office procedures and to be monitored
for a period of time. A lawyer who has demonstrated a lack of
competence in a particular area of the law may be required to
complete a certain number of CLE credits in that area.
V. Adopt A Rule On Expunction Of Records To Read As Follows:
(a) Expunction - Self-Executing. Except for records
relating to proceedings that have resulted in discipline, all
records relating to proceedings conducted pursuant to these Rules,
which proceedings were closed without investigation or dismissed,
shall be expunged from the files of the Office of Lawyer Regulation
and Director three years after the end of the year in which disposition
occurred.
(b) Definition. The term "expunge" and "expunction"
shall mean the destruction of all paper records or other evidence
of a similar type, including but not limited to, the request
for investigation, the response, Investigator's notes, and
the report of investigation. Electronic records may be retained
for up to ten (10) years.
(c) Effect of Expunction. After expunction, the proceedings
shall be deemed never to have occurred. Upon either general or
specific inquiry concerning the existence of proceedings which
have been expunged, the Director shall respond by stating that
no record of the proceedings exist. The attorney in question
may properly respond to any general inquiry requiring reference
to a specific proceeding which has been expunged by stating only
that the proceeding was dismissed and that the record of the
proceeding was expunged pursuant to this Rule. After a response
as provided in this Rule is given to an inquirer, no further
response to an inquiry into the nature or scope of the proceedings,
which have been expunged need be made.
(e) Retention of Records. Upon written application
to the Board of Administrative Oversight, for good cause and
with written notice to the attorney in question and opportunity
to such attorney to be heard, the Director may request that records
which would otherwise be expunged under this Rule be retained
for such additional period of time not to exceed three years
as the board deems appropriate. The Director may seek further
extensions of the period for which retention of the records is
authorized whenever a previous application has been granted.
Commentary: This rule is modeled after Model Rule 4.B.(12)
and Colorado Rule 251.33. We believe Wisconsin should have such
a rule. We propose that paper records of inquiries and grievances
be maintained a minimum of three years and the computer records
of all inquiries and grievances be preserved for up to ten years
and be capable of being printed out should a question arise about
the handling of a particular matter.
VI. Central Intake To Have An Evaluation Component.
Consistency and accountability. To assure overall consistency
in the intake process, using the software we've obtained
from Colorado, the Director will have the ability to monitor
the electronic intake files at frequent intervals from her/his
personal computer, and we propose that she/he meet with the intake
staff regularly. In that way, the Director should be well-prepared
to field the occasional angry call from a dissatisfied grievant
or attorney. Because the Director is responsible for full investigations,
as well as intake, he/she is also able to monitor the consistency
with which matters are handled at the intake stage as compared
with those referred for further investigation.
Program evaluation. The Director will provide monthly
to quarterly statistical reports to the Board of Administrative
Oversight and/or the Supreme Court on the number, nature, age
and disposition of inquiries and grievances. In addition, the
Director may be able to provide the Board of Administrative Oversight
with sanitized diversion agreement summaries that will be useful
in monitoring the use of same.
Finally, real consideration will be given to soliciting consumer/grievant
and lawyer input through the use of surveys and other mechanisms
to determine: whether the central intake program is meeting its
goals of providing a fast, efficient method of handling consumer
inquiries and grievances about lawyer services, and providing
attorneys with effective remedial alternatives to discipline.
Conclusion
A central intake program, as discussed above, has the potential
to make the lawyer regulation process more accessible to the
general public; quickly address inquiries and, where possible,
resolve them; offer lawyers who have had minor practice problems
alternatives designed to enhance the quality of their services;
and promptly refer for full investigation those matters that
may involve serious misconduct.
The rules that are proposed are designed to clarify the Director's
authority, clearly articulate the commencement of the investigation
and screening process, the determinations to be made by the Director;
and the review rights of the participants in the system. Further,
the diversion from discipline program is set forth in great detail
so that those who are referred to the program will be advised
of their responsibilities and the procedures should there be
a material breach of a diversion agreement.
Last, the above proposal offers a rule on expunction of records,
guidance to lawyers on how they can respond regarding inquiries
and grievances closed or dismissed and establishes a framework
for an evaluation component for the central intake function.
Therefore, the undersigned files this petition on behalf of
the Committee on the Formulation of a Central Intake Program
and himself as Interim Administrator and prays for an Order accordingly.
Submitted this 31st day of March, 2000.
Committee on the Formulation of a Central Intake Program
By: James L. Martin
Interim Administrator
Board of Attorneys
Professional Responsibility
Endnotes
1 Within this document we have attempted to
use the terms as proposed in the new rules relating to the lawyer
discipline system. Office of Lawyer Regulation replaces the Board
of Attorneys Professional Responsibility and director replaces
administrator. We have also used the terms "Probable Cause
Body" and "Board of Administrative Oversight"
as we believe these may be the names of the two committees denoted
in the supreme court's reorganization plan.
2 The attached budget has been previously
submitted to the court and the State Bar as an estimate of the
cost of a central intake program. Colorado's central intake
program was the model. We are proposing to modify the position
descriptions to three intake investigators and two program assistants
to better reflect our estimate of the division of responsibilities
necessary to perform the duties of the unit.
3 Lesser Misconduct. Lesser misconduct is
conduct that does not warrant a sanction greater than a private
reprimand. Conduct shall not be considered lesser misconduct
if any of the following considerations apply:
- the misconduct involves the misappropriation of funds;
- the misconduct constitutes a "serious crime" as
defined in SCR
11.03(2);
- the misconduct constitutes family violence;
- the misconduct results in or is likely to result in substantial
prejudice to a client or other person;
- the respondent has been publicly disciplined in the last
three years;
- the misconduct is of the same nature as misconduct for which
the respondent has been disciplined in the last five years;
- the misconduct involves dishonesty, fraud, deceit, or misrepresentation
by the respondent;
- the misconduct involves sexual relations prohibited in SCR
20:1.8(k)(2); or
- the misconduct is part of a pattern of similar misconduct.
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